United States District Court, D. Nevada
REPORT AND RECOMMENDATION [DOCKET NO. 34]
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's motion for leave to file
a third amended complaint. Docket No. 34. Defendants filed
a response in opposition. Docket No. 36. No reply was filed.
The motion is properly resolved without a hearing.
See Local Rule 78-1. For the reasons discussed
below, the undersigned RECOMMENDS that that
the motion for leave to amend be DENIED.
January 25, 2019, United States District Judge Andrew P.
Gordon screened Plaintiff's second amended complaint
pursuant to 28 U.S.C. § 1915(e). Docket No. 14. In that
order, Judge Gordon noted that Plaintiff was attempting to
bring 30 different claims against 37 different defendants
arising out of different events at different locations during
different times. See Id. at 3. Judge Gordon
ultimately allowed two claims to proceed: (1) Plaintiff's
excessive force claim against Defendants Lavender, Leavitt,
Peterson, LVMPD, and Does 1-5 arising out of alleged events
on April 21, 2016, id. at 4-6, and (2)
Plaintiff's free exercise of religion claim against
Defendant Lavender arising out of alleged events on April 21,
2016, see Id. at 8-9. With respect to the other 28
claims, Judge Gordon held that they did not survive screening
on various grounds, including that some claims were brought
against new defendants from allegations untethered to the
events alleged in the original complaint. See Id. at
now returns to the Court with a motion for leave to file a
third amended complaint with ten separate claims against 12
named defendants, 27 doe defendants, and a roe corporate
defendant. See Docket No. 34; see also
Docket No. 34-1.
for leave to amend the pleadings filed on or before the
amendment deadline are governed by Rule 15 of the Federal
Rules of Civil Procedure. Rule 15(a) provides that
“[t]he court should freely give leave [to amend] when
justice so requires, ” and there is a strong public
policy in favor of permitting amendment. Bowles v.
Reade, 198 F.3d 752, 757 (9th Cir. 1999). As such, the
Ninth Circuit has made clear that Rule 15(a) is to be applied
with “extreme liberality.” Eminence Capital,
LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003)
(per curiam). On the other hand, a district
court's discretion to deny leave to amend is
“particularly broad” when-as here-it has already
granted leave to amend previously. Gonzalez v. Planned
Parenthood of Los Angeles, 759 F.3d 1112, 1116 (9th Cir.
Rule 15(a), courts consider various factors, including: (1)
bad faith; (2) undue delay; (3) prejudice to the opposing
party; (4) futility of the amendment; and (5) whether the
plaintiff has previously amended the complaint. See
Id. at 1052. Futility alone justifies denial of a
motion for leave to amend. E.g., Novak v. United
States, 795 F.3d 1012, 1020 (9th Cir. 2015). A proposed
amendment may be deemed futile if it seeks to add defendants
without a sufficient showing that they can be joined to the
suit in compliance with the governing rules. See Wood v.
TriVita, Inc., 2009 WL 2106291, at *3-4 (D. Ariz. June
22, 2009); see also Fed. R. Civ. P. 21 (courts may
address misjoinder of parties “at any time”).
Under Rule 20 of the Federal Rules of Civil Procedure,
multiple defendants may be joined in a single suit if (1) the
claims against each defendant arise out of the same
transaction, occurrence, or series of transactions or
occurrences, and (2) any question of fact or law is common to
all parties. Fed.R.Civ.P. 20(a)(2). Unrelated claims against
different defendants belong in different lawsuits.
See Docket No. 14 at 10 (citing George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007)). Courts have
broad discretion in applying Rule 20. Armstead v. City of
Los Angeles, 66 F.Supp.3d 1254, 1262 (C.D. Cal. 2014).
the filing of three complaints, there are two claims
proceeding in this case: (1) Plaintiff's excessive force
claim against Defendants Lavender, Leavitt, LVMPD, and Does
1-5 arising out of alleged events on April 21, 2016,
id. at 4-6,  and (2) Plaintiff's free exercise of
religion claim against Defendant Lavender arising out of
alleged events on April 21, 2016, see Id. at 8-9.
Those two claims also reappear in the proposed third amended
complaint and are not at issue for purposes of the motion for
leave to amend.
other eight claims in the proposed third amended complaint,
Plaintiff attempts to replead the previously-dismissed Counts
X and XI as proposed Counts V and VI. Judge Gordon already
found those claims to be insufficiently pleaded to survive
screening. See Docket No. 14 at 13. In comparing the
allegations in the previously-dismissed claims against the
allegations in the proposed Counts V and VI, the undersigned
does not discern any meaningful change to them at all, let
alone any change that alters Judge Gordon's analysis.
Compare Docket No. 15 at ¶¶ 93-119
(previously-dismissed Count X) with Docket No. 34-1
at ¶¶ 46-73 (proposed Count V); compare
also Docket No. 15 at ¶¶ 120-23
(previously-dismissed Count XI) with Docket No. 34-1
at ¶¶ 74-77 (proposed Count VI). As such, these
proposed claims fail for the reasons already articulated and,
for that reason, leave to amend should not be granted as to
these two proposed claims.
proposed third amended complaint also seeks to add six new
claims against other defendants that bear no relation to the
claims currently in the case:
• Count I alleges retaliation by proposed Defendant
Madrid and various doe defendants arising out of alleged
events taking place in late June, 2011;
• Count II alleges retaliation by various doe defendants
arising out of alleged events taking place on ...